America’s democracy is in crisis – how can Joe Biden fix voting rights?

When Joe Biden is inaugurated next month, he will inherit an America where democracy is in crisis.

The 2020 election exposed the urgent need to protect the right to vote in America. Throughout the year, voters waited hours in line to cast their ballots, some until the early hours of the morning. Democrats and voting rights groups brought an explosion of lawsuits seeking to ease restrictions around mail-in voting as Republicans around the country refused to budge.

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The president-elect’s ability to fix these problems hinges significantly on whether or not Democrats win two runoff Senate races in Georgia, giving them full control of Congress and the White House. If Democrats do take full control, they are likely to move sweeping voting reforms, including requiring automatic voter registration across the country and restoring the full protections of the Voting Rights Act.

But if Democrats fail to retake the Senate, Biden will be more limited in what he can do to fix voting rights. The US constitution gives the president almost no power over elections, instead entrusting that authority to state legislatures and Congress. Nonetheless, there are a few key areas where Biden could act unilaterally.

2020 census

Biden may immediately have the opportunity to undo some of Donald Trump’s unprecedented meddling in the 2020 census, the critical decennial survey that determines how many seats in Congress each state gets and how $1.5tn in federal funds get allocated. Even after the Census Bureau faced severe delays, the Trump administration has rushed the agency to complete its work before Trump leaves office, raising significant questions about the quality and accuracy of the census data.

The rush is probably linked to an executive order the president issued last summer, seeking to exclude undocumented immigrants from the data used to apportion congressional seats. The US government has long allocated congressional seats based on the total population and Trump’s change would probably cause immigrant-rich states like California and Texas to lose congressional seats while benefiting conservative, whiter places. The US supreme court recently dismissed a lawsuit challenging the measure, saying it was premature, but a majority of the justices did not weigh in on the merits.

The Census Bureau recently disclosed, however, it may not be able to deliver apportionment data to Trump before he leaves office. If Biden takes office before the data is produced, he could rescind Trump’s memo order undocumented people excluded from the apportionment count. Even if Trump sends the data, there may be procedural mechanisms for the US House to invite the new president to revise it.

Either way, the Biden administration will take on a census “that faced unprecedented disruption due to the pandemic, but also because of unprecedented political interference in the modern era”, said Terri Ann Lowenthal, a census consultant.

“I think the Biden administration rightly can, and should, look at ways that the current administration’s actions may have affected decisions by career Census Bureau officials to ensure the most accurate and high quality census possible,” Lowenthal said. “And if the new administration determines that the Census Bureau wasn’t able to do its best work, free from political or partisan considerations, I think the new administration would be justified in directing the Census Bureau, through the commerce secretary, to revisit whatever work it’s already done.”

Expanding voter registration

The constitution allows each US state to set its own voter registration rules, but Biden could use an existing federal law to significantly expand voter registration opportunities. A 1993 statute, the National Voter Registration Act, requires nearly every state to offer people the opportunity to register to vote when they interact with the DMV and other state agencies.

Federal agencies, however, like the Department of Veterans Affairs, Social Security Administration and the Indian Health Service, can choose to offer voter registration services if a state requests it, but are not required to do so. Biden could change that and issue an executive order requiring federal agencies to accept if a state asks them to serve as a voter registration agency under the law.

“That would go a long way to addressing the fact that there are tens of millions of eligible citizens who are not on the rolls,” said Chiraag Bains, director of legal strategies at Demos, a civil rights thinktank that has advocated for the change.

Such a change could make a big difference for Native Americans, a group for whom voter turnout has historically lagged behind national rates. The Indian Health Service, part of the Department of Health and Human Services, provides medical care to approximately 2.5 million Native Americans and Alaska Natives. Designating US Customs and Immigration Services a voter registration agency under the law could also expand voter registration for the nearly quarter-million people who become naturalized citizens each year, according to the Brennan Center for Justice.

The Department of Justice

Since Trump took office, the voting section at the Department of Justice (DoJ), charged with enforcing America’s most powerful voting rights laws, has not made much of an effort to protect voting rights. In fact, the department has been nearly silent on the topic. The only high-profile cases the department has been involved in have been ones where it has aligned with states to defend voting restrictions, including Ohio’s aggressive voter purge policy and Texas’ voter ID law.

As president, Biden will appoint both an attorney general and someone to oversee the department’s civil rights division, which houses the voting section. Both of those officials could signal that voting rights enforcement is a major priority for the department and push the department to be more aggressive in bringing voting rights suits.

The justice department’s absence in the voting rights arena makes a big difference, former department officials and civil rights advocates told the Guardian earlier this year. The justice department has significant resources to bring voting rights cases and can deter bad actors from passing measures that make it harder to vote.

The justice department also represents the views of the United States, carries credibility in court that attracts the attention of judges. The justice department does not typically get involved in many voting rights disputes, but when it does, courts listen.

“It’s not going to be easy. The courts have gotten considerably more conservative and hostile to voting rights claims. But the justice department has to be a player in this and it’ll be good to have them on the right side of voting rights cases again,” Bains said.